Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Criminalises the gender identity/expression of trans people
Penal Code 2008, Section 248 Unnatural Offences

Section 248 criminalises “carnal intercourse against the order of nature”, with a maximum penalty of ten years imprisonment and a possible fine. Intercourse between men and between women are both criminalised under this provision.1

Penal Code 2008, Section 249 Acts of Gross Indecency

Section 249 criminalises acts of “gross indecency”, punishable with up to 14 years imprisonment and/or a fine. The provision applies to such acts between men and between women.

Penal Code 2008, Section 379 Vagabond

Section 379 criminalises “any male person who dresses or is attired in the fashion of a woman” in public, with a penalty of up to three months imprisonment and a possible fine.2 It can be used to target transgender women.

Enforcement

2017

The US Department of State Human Rights Report for South Sudan have stated that there have been no reports of the authorities enforcing the law in recent years.

Statements by Public Figures

2017

In September, Labor, Public Service and Human Resource Development Minister, Gathoth Gatkuoth Hothnyang, stated that: “the government would order security forces to arrest LGBTI persons and detain them until they procreate.”

The government would order security forces to arrest LGBTI persons and detain them until they procreate.

Gathoth Gatkuoth Hothnyang, Minister

In March, Justice Minister Paulino Wanawila said to Eye Radio “same-sex marriage is in conflict with our national laws and our cultures.”

2010

Prior to independence, South Sudan President, Salva Kiir Mayardit, set out the country’s future approach to LGBT issues: “It [homosexuality] is not in our character […] it is not there and if anybody wants to import it to Sudan […] it will always be condemned by everybody.”

Persecution and Discrimination

2018

In April it was reported that Asan Juma, an LGBT activist, fled South Sudan after facing threats from the country’s national security operatives.

2017

The US Department of State Human Rights Report for South Sudan reported incidents of discrimination and abuse in 2017. LGBT persons reported security forces routinely harassed and sometimes arrested, detained, tortured and beat them.

Legislative News

2017

In its second UPR cycle, South Sudan noted a recommendation to decriminalise consensual same-sex relations between adults, deeming it to be “in conflict with the national laws, government structures, policies or customs.”

Footnotes
1. Penal Code 2008, Section 248 Unnatural Offences

“(1) Whoever, has carnal intercourse against the order of nature with any person and whoever allows any person to have such intercourse with him or her commits an offence, and upon conviction, shall be sentenced to imprisonment for a term not
exceeding ten years and may also be liable to a fine…

Explanation— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Full text.

2. Penal Code 2008, Section 379 Vagabond

“(1) The term “vagabond” means—

(e) any male person who dresses or is attired in the fashion of a woman in a public place.

(2) Whoever is convicted as a vagabond shall be sentenced to imprisonment for a term not exceeding three months or with a fine or with both.” Full text.

3. Penal Code 2008, Section 249 Acts of Gross Indecency

“Whoever, commits an act of gross indecency upon the person of another without his or her consent or by the use of force or threats or compels a person to join with him or her in the commission of such act, commits the offence of gross indecency, and upon conviction, shall be sentenced to imprisonment for a term not exceeding fourteen years or with a fine or with both.”

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